Afghan citizenship, defined and redefined over decades of change

Source: Indian Express dated 30.12.2019

-- Faizan Mustafa (Expert in constitutional law and Vice-Chancellor, NALSAR University of Law, Hyderabad)

Neighbourhood Constitutions: What are the constitutional and legal provisions for citizenship and rights of religious minorities in countries neighbouring India? A look at Afganistan.

Unlike the Pakistan and Bangladesh Constitutions, the Afghanistan Constitution begins with praise of Allah and also blessings for the last Prophet and his followers.

The Citizenship Amendment Act (CAA), 2019 makes it easier for non-Muslim migrants from three countries to get Indian citizenship. This series has previously looked at the Constitutions of Pakistan and Bangladesh. The third country is Afghanistan:

Constitutional history

In a long history of conflict and multiple invasions, no empire or nation could control Afghanistan for long. Even the British, in spite of three wars since 1839, could not keep Afghanistan under their control and were defeated in the third of these wars in 1919. Afghanistan was not part of British India and was not partitioned from India, which was cited among the reasons for enacting CAA. Under the Treaty of Rawalpindi, Afghanistan got independence in 1919. Simultaneously, a treaty of friendship was signed with Russia.

King Amanullah got a Constitution for Afghanistan in 1921 and again in 1923 but the Tajiks removed him in 1929. A new Constitution was enacted in 1931. A coalition of rightist groups came to power in 1952 and General Dawood Khan became PM in 1954.

A new Constitution was adopted in 1964 by the Grand Assembly, or Loya Jirga. Signed by King Zahir Shah, it provided for a constitutional monarchy and a bicameral legislature. Sovereignty was vested in the nation, not Allah. Article 2 declared Islam the state religion and, unlike Pakistan and Bangladesh, mentioned that religious rites of the state shall be performed as per the Sunni Hanafi doctrine. Thus, other Muslim sects were in a way minorities. But the same Article also said non-Muslims shall be free to perform their rituals within limits determined by the laws for public decency and public peace.

Title Three of the Constitution talked about Rights and Duties (in India, Fundamental Duties were inserted in 1976). The first Article declared the people of Afghanistan, without discrimination or preference, have equal rights and obligations before law. Right to liberty under Article 26 was said to have no limitations except liberty of others and public interest. It said the state has a duty to protect liberty and dignity of every human being. The Constitution did not mention freedom of religion of Muslims or others.

Soviet invasion

In a coup in 1978, the Communist Party took over power and introduced radical reforms. The United Nations condemned the invasion and the US supported the Afghan rebels in a decade-long war with the USSR. India supported the Soviet invasion. Eventually the Soviet army withdrew in 1989 and Soviet Union-backed government collapsed in 1992. Thus until 1992, under the communist regime, no religious persecution of minorities could be alleged.

In 1995, the Islamic militia Taliban came to power and introduced regressive restrictions on female education and dated Islamic law and punishments. In 2001, they destroyed Buddhist statues in Bamiyan. During their six-year rule, even Muslims were persecuted. On December 22, 2001, Hamid Karzai took over as head of an interim government. The current Constitution was adopted and ratified in January 2004.

Also Read | Citizenship law could lead to India-Pakistan conflict: Imran Khan

Religion & minority rights

Unlike the Pakistan and Bangladesh Constitutions, the Afghanistan Constitution begins with praise of Allah and also blessings for the last Prophet and his followers. The Preamble makes a categorical statement that Afghanistan belongs to all its tribes and peoples. Unlike the Indian Constitution, it mentions its commitment to the United Nations Charter as well as Universal Declaration of Human Rights and thus broadens the ambit of non-Muslims’ rights and non-discrimination.

While it declares Islam the state religion, Article 2 says followers of other religions shall be free within the bounds of law in exercise and performance of their religious rituals. Article 3 is problematic as it lays down that no law shall contravene tenets and provisions of Islam. Unlike Pakistan, sovereignty here (under Article 4) rests with the people, not Allah. Article 35 prohibits formation of any party on the basis of religious sectarianism in addition to tribalism, parochialism and language. Article 80 prohibits ministers on tour from using their position for religious purposes. Article 149 prohibits amendment of principles of Islam and Islamic republicanism. It says fundamental rights can be amended only to improve and enlarge guarantees, not to diminish or restrict them.

The First Fundamental Right under Article 22 prohibits any discrimination and distinction between citizens and states that all citizens have equal rights and duties. India has given right to equality even to non-citizens. Article 57 of the Afghanistan Constitution does say foreigners will have rights and liberties in accordance with the law.

Unlike in India, Pakistan and Bangladesh, Article 29 of the Afghanistan Constitution specifically uses the term “persecution”. It forbids persecution of human beings. Thus the allegation of religious persecution in Afghanistan is not supported by the text of the Constitution; in practice, except during the short regime of the Taliban, no such case is made out. Unlike in India (only the SC, ST & OBC Commissions have constitutional status), Article 58 gives constitutional status to the independent Human Rights Commission.

Only a Muslim citizen born to Afghan parents can become President (in India, a naturalised citizen can become President) but the Afghanistan Chief Justice, judges and ministers can be naturalised citizens.

Citizenship

The original 1922 citizenship law of Afghanistan was handwritten. Article 8 of the 1923 Constitution gave citizenship to all residents without religious discrimination. The main purpose was not citizenship but issuance of tazkira, or national identity cards. In India too, the National Register of Indian Citizens (NRIC) concept came with National Identity Card Rules, 2003. Afghanistan’s Article 8 gave citizenship just to males and was based on the narrower principle of jus sanguinis or blood relationship. But on November 7, 1936, a new citizenship law was made and, as per the 1930 Hague Convention on Nationality, jus soli or citizenship by birth was adopted. Article 2 said all children born to Afghan parents inside the country or abroad will be Afghan citizens.

The Indian Constitution and original Citizenship Act too was based on jus soli but the 1986 and 2003 amendments have now adopted jus sanguinis; for children born after December 31, 2003, both parents should be Indian citizens. Any foreigner who had resided for five years in Afghanistan could get Afghan citizenship. Following the “dependent principle”, any woman who married a foreigner lost citizenship but could get it back if her marriage subsequently ended in divorce. Non-Afghan women married to Afghan men were given citizenship.

The communist regime brought a few changes. On May 5, 1986, citizenship was defined as the legal and political relationship between a national and the state of Democratic Republic of Afghanistan. India does not define citizenship. For the first time in Afghanistan, dual citizenship was abolished. The “independent principle” was adopted in respect of married women.

In 1979, citizenship of the king was withdrawn for supporting alien powers; it was restored in 1992 by the new government. A new law of the Republic of Afghanistan came into force on March 15, 1992 but there was no major change except that renunciation of citizenship now required parliamentary approval and presidential assent. This law was replaced on June 11, 2000 by the Islamic Emirate of Afghanistan, without any substantive change. Under Article 28, an Afghan woman now retains her citizenship in spite of marrying a foreigner. Under Article 9(2), a child born in Afghanistan or outside to Afghan parents is a citizen. Even a child born in Afghanistan to foreigners can get citizenship on attaining age 18, if he decides to stay there, and if, within six more months, he does not apply for the same citizenship as his parents. In 2001, dual nationality was again accepted.

Article 12 says that if a child is born in Afghanistan and parents’ documents show that evidence of their citizenship is not available, the child will be considered an Afghan. Had India adopted this rule, 2 lakh children would have got included in the Assam NRC. In accordance with the UN Convention on the Rights of Stateless Persons, 1954, all stateless persons are considered Afghan citizens. Citizenship by naturalisation is given to anyone who has resided there for five years.

After the Soviet invasion and subsequent conflict, Afghanistan has seen out-migration of millions. In 2017, 1,773 applications of renunciation including of Hindus and Sikhs were received. Not every migration was due to religious persecution or well-founded fears.

Article 4 of the current Constitution declares that the Afghanistan nation is composed of all individuals who possess Afghan citizenship and the word Afghan shall apply to every citizen. In a bold and categorical statement, it says no individual shall be deprived of citizenship. Article 28 mentions it as a Fundamental Right and states no Afghan citizen shall be deprived of citizenship or sentenced to domestic or foreign exile. Like Pakistan and Bangladesh, Afghanistan neither confers nor denies citizenship on the basis of religion.

Reading Bangladesh provisions for citizenship and freedom of religion

Source: Indian Express dated 30.12.2019

-- Faizan Mustafa (Expert in constitutional law and Vice-Chancellor, NALSAR University of Law, Hyderabad)

Neighbourhood Constitutions: What are the constitutional and legal provisions for citizenship and rights of religious minorities in countries neighbouring India? A look at Bangladesh.

A look at the laws under which Bangladesh grants citizenship, and what its Constitution says on freedom of religion.

Among the three countries from where certain categories of migrants have become eligible for Indian citizenship under the Citizenship Amendment Act, Bangladesh is significant. A look at the laws under which Bangladesh grants citizenship, and what its Constitution says on freedom of religion:

How does the Bangladesh Constitution define the country?

The Bangladesh Constitution, adopted by the Constituent Assembly on December 4, 1972, refers to its war of liberation as “historic war” and establishes the independent sovereign People’s Republic of Bangladesh.

The original preamble mentioned ‘Nationalism, Democracy, Socialism and Secularism’ as fundamental principles. Unlike India’s Constitution, the Bangladesh Constitution’s commitment to socialism is explicitly mentioned. The preamble says the fundamental aim of the state is to realise through democratic process socialist society free from exploitation —a society in which rule of law, fundamental human rights and freedoms, equality and justice, political, economic and social will be secured to all citizens. The expression “rule of law” is not used in the Indian Constitution.

But isn’t Islam the state religion?

In 1977, the military dictator Ziaur Rahman removed the term “secular” from the Constitution. In 1988, President Hussain Muhammad Ershad got Article 2A inserted, which says the state religion of the republic is Islam but other religions may be practised in peace and harmony. The amendment was struck down by the Bangladesh High Court in 2005 and the Supreme Court in 2010. The SC said that in spite of Islam being the state religion, the Constitution remains secular. It observed that the “preamble and the relevant provision of the Constitution in respect of secularism, nationalism and socialism as existed on August 15, 1975 (Mujibur Rahman was assassinated on this day) will revive”. On June 30, 2011, the Constitution was amended and the term “secular” reinserted. The amendment also removed the expression “absolute faith and trust in Allah” from the preamble but retained, above the preamble, the expression “in the name of Allah, the beneficent, the merciful” that had been added in 1997. To accommodate other religions, it also mentions “in the name of our Creator, the merciful”.

How does the idea of a state religion coexist with that of secularism?

While Islam is the state religion, other religions have been given “equal status” and “equal rights” by the Constitution and their followers have been given an equal right to freely practise their religions. This seems to be a contradiction as it is not in line with classical secular formulation.

Article 8(1) of the Bangladesh Constitution mentions secularism along with nationalism, democracy and socialism as the fundamental principles of state policy. Article 12 was revived by the 15th Amendment and in a way this, unlike the Indian Constitution, explains the essential ingredients of secularism and how it will be achieved. It says the principles of secularism shall be realised by elimination of communalism in all forms, granting of political status in favour of any religion, abuse of religion for political purposes and any discrimination against, or persecution of, persons practising a particular religion. With such a progressive provision, the charge of religious persecution has no legs to stand on as far as the text of the Constitution is concerned, just because Islam is the state religion.

Unlike Pakistan’s Constitution, there is no Muslim qualification required for the office of President or other constitutional offices.

Explained: Afghan citizenship, defined and redefined over decades of change

How is freedom of religion defined?

Article 41 of the Bangladesh Constitution says every citizen “subject to public order and morality” has the right to profess, practice or propagate any religion. In India, Article 25 guarantees religious freedom in a narrower sense — in addition to “public order and morality”, it is also subject to “health” and “other fundamental rights”, and the state can also restrict freedom of religion in respect of any economic, financial, political or other secular activity associated with religious practices, and can also do so in the name of social reforms. But in another sense, India’s religious freedom is broader as it is not confined to just citizens.

Editorial | New citizenship law is taking a toll on ties with Dhaka

Like India’s Article 26, Bangladesh’s Article 41(b) gives every religious community or denomination the right to establish, maintain and manage its religious institutions. Like India’s Article 28, Article 41(c) in Bangladesh lays down that no person attending any educational institution shall be required to receive religious instruction or take part in or to attend any religious ceremony or worship, if that relates to a religion other than his own. The difference is that while India does not permit any religious instruction in any institution that is maintained out of state funds or is recognised by the government, Bangladesh permits religious instruction but only of one’s own religion.

Article 28(1) is a replica of India’s Article 15 and prohibits the state from discriminating against any citizen on grounds only of religion, race, caste, sex or place of birth. This includes admission to any educational institution. India’s Article 15 does not mention educational institutions and gives right of access only in respect of places maintained wholly or partly out of state funds or dedicated to the use of the general public. The Bangladesh Constitution prohibits all discrimination based on religion, which weakens the argument of religious persecution there.

What are the laws on citizenship?

Article 6 of the Constitution says citizenship in Bangladesh shall be regulated by law and people shall be known as “Bengalees as a nation”. On December 15, 1972, a Presidential Order, Bangladesh Citizenship (Temporary Provisions), conferred citizenship from March 26, 1971 on anyone who, or whose father or grandfather, was born in the territories then comprising Bangladesh and who was a permanent resident on March 25, 1971 and continued to be a resident of Bangladesh. Any person who, for studies or employment, was in territories within a country at war or engaged in military operation (Pakistan), and was being prevented from returning to Bangladesh, would also be citizen.

The Bangladesh government, like Pakistan, may grant citizenship to a person who is citizen of Europe, North America or Australia or any other state. But knowledge of Bangla would be necessary. Foreign women married to Bangla men can also get citizenship after two years’ residence. Irrespective of place of birth, if one’s parents are Bangladeshi, citizenship would be given. In 2017, it was provided that anyone who invests $150,000 can get citizenship.

Read | Bangladesh ministers cancel visit to India

Does Bangladesh grant citizens to non-Bangla-speaking residents?

Many Urdu-speaking people who had supported Pakistan in the war became stateless with the creation of Bangladesh as the law did not give citizenship to those who sided with the enemy country. There were some 10 lakh such people in 1972. Under an agreement among India, Bangladesh and Pakistan, 1,780,969 were repatriated to Pakistan, followed by about 1 lakh more subsequently, but 2.5 lakh remained. In 2008, the Supreme Court in M Sadakat Khan reaffirmed the citizenship of all Urdu-speaking citizens. The 1951 Citizenship Act of Pakistan also remained in force. In 2016, a draft citizenship law was prepared that gave dual citizenship but was criticised for other provisions like termination of citizenship.

No maintenance for women if divorce is due to adultery: HC

Source: Hindustan Times dated 26.12.2019

-- K A Y Dodhiya

The Bombay high court (HC) recently upheld an order of a lower court which cancelled the maintenance being paid to a divorced woman on the grounds that the divorce was granted after an allegation of adultery had been proved against her.

On December 18, the HC bench held that if adultery was not proved, the woman could have claimed a right to maintenance after divorce, but as that was not the case the lower court order of cancelling maintenance was valid.

The bench of justice Nitin Sambre, while hearing a criminal writ petition filed by the woman, was informed that the couple got married in 1980.

However, in 2000 the husband had sought a divorce under section 13 of The Hindu Marriage Act,1955 on the grounds that his wife had committed adultery, which was granted.

However, as the divorce order was challenged by her, the husband was directed to pay maintenance to the wife and their son.

In 2010, the wife filed an application for enhancement of the maintenance amount while the husband filed a counter application to cancel the maintenance amount in the magistrate’s court.

The lower court allowed the wife’s application while rejecting the husband’s application and directed him to pay more than three times the amount he was paying for the wife and almost eight times for the son.

Aggrieved by the magistrate’s order, the husband applied for a revision application which was allowed by the additional sessions judge at Sangli in 2015.

The judge at the lower court, in his order, had observed that as the allegation of adultery was proved against the wife and divorce was granted as per the statutory embargo under sub-section (4) of section 125 of The Hindu Marriage Act,1955, the wife was not entitled to maintenance.

Interpretation of the section says,“If the allegations of adultery are proved against such a woman or in spite of the husband being ready to maintain her, she refuses to cohabit the wife can be refused payment of maintenance.”

Based on the above submissions and interpretations, Sambre said, “Considering the expressed embargo on the right of the petitioner to claim maintenance particularly, divorce was ordered on April 27, 2000, based on the allegation of adultery, the court below has rightly held that the petitioner-wife is not entitled to maintenance.”

How Pakistan grants citizenship, and what provisions cover its minorities

Souce: Indian Express dated 18.12.2019

-- Faizan Mustafa (Expert in constitutional law and Vice-Chancellor, NALSAR University of Law, Hyderabad)

Neighbourhood Constitutions: What are the constitutional and legal provisions for citizenship and rights of religious minorities in countries neighbouring India? A look at Pakistan.

The newly passed Citizenship Amendment Act makes it easier for religious minorities of three neighbouring countries to get Indian citizenship. What are the constitutional and legal provisions for citizenship and rights of religious minorities in neighbouring countries of India? A look at Pakistan:

How does the preamble to Pakistan’s Constitution compare with the preamble to India’s?

The preamble to the Indian Constitution declares the country as a “sovereign, socialist, secular, democratic republic”, with the terms “socialist” and “secular” having been added by the 42nd Amendment, 1976. On the other hand, as many as 60 Constitutions in the world refer to God including those in Germany, Brazil, Greece and Ireland. Pakistan’s Constitution starts with “In the name of Allah, the most beneficent, the merciful”, acknowledges sovereignty of God in respect of the universe, and contains references to Muslims and Islam. When this provision in the Objective Resolution was moved by Liaquat Ali Khan on March 12, 1949, it was opposed by non-Muslim members of Constituent Assembly. Sris Chandra Chattopadhya said, “There is no place for religion in the State… The state religion is a dangerous principle.”

Does Pakistan give citizenship on the basis of religion?

Although an Islamic state, Pakistan does not have any religious test for citizenship. Its Citizenship Act, 1951 is similar to India’s Citizenship Act in certain respects may be seen as more liberal. Section 6 lays down that any person who migrated to Pakistan before January 1, 1952 is a citizen. Section 3 gives citizenship on the commencement of the Act (April 13, 1951) to anyone who, or any of whose parents or grandparents, was born in the territories included in Pakistan on March 31, 1973. Pakistan grants citizenship to any person who migrated there before April 13, 1951 (India’s cutoff is July 19, 1948, except in Assam, where it is March 25,1971) from any territory in the subcontinent with the intention of permanently residing there. Like India’s law, Section 7 in Pakistan says that a person who migrated to India after March 1, 1947 shall not be a citizen of Pakistan except if (s)he returned under resettlement or permanent return.

While Section 4 in the Pakistan law lays down that every person born in Pakistan after the commencement of the Act shall be a Pakistan citizen by birth, India has added restrictive qualifications by amendments in 1986 (one parent should be an Indian citizen) and 2003 (both parents should be Indian citizens, or one a citizen and the other not an illegal migrant). Section 5 of the Pakistan Act talks of citizenship by descent if one of the parents was a Pakistani citizen at the time of the person’s birth.

J&K migrants to Pakistan are deemed to be Pakistan citizens until Kashmir’s relationship with Pakistan is finally determined. British residents were similarly deemed to be citizens. Citizenship can also be given to Commonwealth citizens by the government.

What is different in the way Pakistan and India define freedom of religion?

Unlike the preamble to the Constitution of India, Pakistan’s Constitution explicitly lays down in the preamble itself that “adequate provision shall be made for the minorities freely to profess, practice freedom of religion and develop their culture” and that “adequate provision shall be made to protect legitimate interests of minorities and backward classes”. Of course, the expression “legitimate interests” in respect of minorities is restrictive.

Unlike India, Pakistan gives the right to freedom of religion only to citizens. In India everyone, including foreigners, has freedom of religion and that’s why foreign missionaries have a right to propagate Christianity.

Unlike in India, freedom of speech in Pakistan specifically includes freedom of press – but this is subject to “glory of Islam”. Due to this restriction, Pakistan has a regressive blasphemy law with a mandatory death penalty, which runs contrary even to fundamental principles of Islamic criminal law. Its widespread abuse raises questions about Pakistan’s commitment to free speech.

Also Read | Citizenship law could lead to India-Pakistan conflict: Imran Khan

What steps has Pakistan taken to protect the ‘legitimate interests’ of minorities, as provided for?

Article 36 says the state shall safeguard the legitimate rights and interests of minorities including their due representation in the federal and provincial services. While religious minorities do face discrimination, the Constitution makes a provision of reservation for them. In the National Assembly, 10 seats are reserved for them. In Balochistan, though religious minorities constitute just 1.25% of the population, reservation for them is 4.62 %; in Punjab, they are 2.79% and have reservation of 2.16%; in Sindh, they are 8.69% and reservation is 5.36%; in NW Province, they are 2.46% but reservation is just 0.56%.

Hindus in West Pakistan (today’s Pakistan) in 1951, after migration to India of about 5 million post-Partition, were just 3.44 per cent. In the 1961 Census, non-Muslim population got reduced to 2.83 per cent in today’s Pakistan. This went up to 3.25 per cent in 1972, 3.30 per cent in 1981, and 3.70 per cent in 1998.

Are there personal laws for religious minorities in Pakistan?

Yes. Although there is a provision that laws that are inconsistent with the state religion are to be struck down as unconstitutional, Article 227(3) of Pakistan’s Constitution does exempt personal law of minorities from this provision. In India, any provision of personal law that is inconsistent with the Constitution is null and void. Triple talaq was thus declared invalid in 2017.

In 2016, Sindh province, which has the highest number of Hindus in Pakistan, passed legislation outlawing forced conversions. The Punjab Assembly enacted the Sikh Anand Marriage Act in 2018.

Data Protection Bill — issues, debate

Source: Indian Express dated 06.12.2019

-- Karishma Mehrotra

Cleared by the Cabinet, the Personal Data Protection Bill is due to be placed in Parliament. How does it propose to protect personal data, how is it different from previous draft, and why is it a subject of debate?

Global negotiations today revolve around debates about the transfer of data. India’s first attempt to domestically legislate on the topic, the Personal Data Protection (PDP) Bill, 2019, has been approved by the Cabinet and is slated to be placed in Parliament this winter session. The Bill has three key aspects that were not previously included in a draft version, prepared by a committee headed by retired Justice B N Srikrishna.

Why does data matter?

Data is any collection of information that is stored in a way so computers can easily read them (think 011010101010 format). Data usually refers to information about your messages, social media posts, online transactions, and browser searches.

The individual whose data is being stored and processed is called the data principal in the PDP Bill. This large collection of information about you and your online habits has become an important source of profits, but also a potential avenue for invasion of privacy because it can reveal extremely personal aspects. Companies, governments, and political parties find it valuable because they can use it to find the most convincing ways to advertise to you online. It is now clear that much of the future’s economy and law enforcement will be predicated on the regulation of data, introducing issues of national sovereignty.

Who handles my data, and how?

Data is stored in a physical space similar to a file cabinet of documents, and transported across country borders in underwater cables that run as deep as Mount Everest and as long as four times the Indian Ocean. To be considered useful, data has to be processed, which means analysed by computers.

Data is collected and handled by entities called data fiduciaries. While the fiduciary controls how and why data is processed, the processing itself may be by a third party, the data processor. This distinction is important to delineate responsibility as data moves from entity to entity. For example, in the US, Facebook (the data controller) fell into controversy for the actions of the data processor — Cambridge Analytica.

The physical attributes of data — where data is stored, where it is sent, where it is turned into something useful — are called data flows. Data localisation arguments are premised on the idea that data flows determine who has access to the data, who profits off it, who taxes and who “owns” it. However, many contend that the physical location of the data is not relevant in the cyber world.

How does the PDP Bill propose to regulate data transfer?

To legislate on the topic, the Bill trifurcates personal data. The umbrella group is all personal data — data from which an individual can be identified. Some types of personal data are considered sensitive personal data (SPD), which the Bill defines as financial, health, sexual orientation, biometric, genetic, transgender status, caste, religious belief, and more. Another subset is critical personal data. The government at any time can deem something critical, and has given examples as military or national security data.

In the Bill approved by the Cabinet, there are three significant changes from the version drafted by a committee headed by the Justice B N Srikrishna Committee.

* The draft had said all fiduciaries must store a copy of all personal data in India — a provision that was criticised by foreign technology companies that store most of Indians’ data abroad and even some domestic startups that were worried about a foreign backlash. The approved Bill removes this stipulation, only requiring individual consent for data transfer abroad. Similar to the draft, however, the Bill still requires sensitive personal data to be stored only in India. It can be processed abroad only under certain conditions including approval of a Data Protection Agency (DPA). The final category of critical personal data must be stored and processed in India.

* The Bill mandates fiduciaries to give the government any non-personal data when demanded. Non-personal data refers to anonymised data, such as traffic patterns or demographic data. The previous draft did not apply to this type of data, which many companies use to fund their business model.

* The Bill also requires social media companies, which are deemed significant data fiduciaries based on factors such as volume and sensitivity of data as well as their turnover, to develop their own user verification mechanism. While the process can be voluntary for users and can be completely designed by the company, it will decrease the anonymity of users and “prevent trolling”, said official sources.

What are its other key features?

The Bill includes exemptions for processing data without an individual’s consent for “reasonable purposes”, including security of the state, detection of any unlawful activity or fraud, whistleblowing, medical emergencies, credit scoring, operation of search engines and processing of publicly available data, official sources said.

The Bill calls for the creation of an independent regulator DPA, which will oversee assessments and audits and definition making. Each company will have a Data Protection Officer (DPO) who will liaison with the DPA for auditing, grievance redressal, recording maintenance and more. The committee’s draft had required the DPO to be based in India.

The committee’s draft had several other significant keywords that are expected to be in the Bill. “Purpose limitation” and “collection limitation” limit the collection of data to what is needed for “clear, specific, and lawful” purposes or for reasons that the data principal would “reasonably expect”. It also grants individuals the right to data portability, and the ability to access and transfer one’s own data. Finally, it legislates on the the right to be forgotten. With historical roots in European Union law, this right allows an individual to remove consent for data collection and disclosure. After the Cabinet approval of the bill, an official source said this concept is still “evolving” and has not been “concretised” yet.

Government sources said they were open to the “widest debate on this Bill”.

What are the two sides of the debate?

For data localisation

A common argument from government officials has been that data localisation will help law-enforcement access data for investigations and enforcement. As of now, much of cross-border data transfer is governed by individual bilateral “mutual legal assistance treaties” — a process that almost all stakeholders agree is cumbersome. In addition, proponents highlight security against foreign attacks and surveillance, harkening notions of data sovereignty.

The government doubled down on this argument after news broke that 121 Indian citizens’ WhatsApp accounts were hacked by an Israeli software called Pegasus. Even before that, the argument was used prominently against WhatsApp when a spate of lynchings across the country linked to rumours that spread on the platform in the summer of 2018. WhatsApp’s firm stance on encrypted content have frustrated government officials around the world.

Many domestic-born technology companies, which store most of their data exclusively in India, support localisation. PayTM has consistently supported localisation (without mirroring), and Reliance Jio has strongly argued that data regulation for privacy and security will have little teeth without localisation, calling upon models in China and Russia. Many economy stakeholders say localisation will also increase the ability of the Indian government to tax Internet giants.

Against the Bill

Civil society groups have criticised the open-ended exceptions given to the government in the Bill, allowing for surveillance. Moreover, some lawyers contend that security and government access are not achieved by localisation. Even if the data is stored in the country, the encryption keys may still be out of reach of national agencies.

Technology giants like Facebook and Google and their industry bodies, especially those with significant ties to the US, have slung heavy backlash. Many are concerned with a fractured Internet (or a “splinternet”), where the domino effect of protectionist policy will lead to other countries following suit. Much of this sentiment harkens to the values of a globalised, competitive internet marketplace, where costs and speeds determine information flows rather than nationalistic borders. Opponents say protectionism may backfire on India’s own young startups that are attempting global growth, or on larger firms that process foreign data in India, such as Tata Consulting Services and Wipro.

A Judicious Balance: Supreme Court’s recent judgments reaffirm its role as a vigilant monitor

Source: Indian Express dated December 03, 2019 

Soli J. Sorabjee (Former Attorney General of India)

One may criticise our Supreme Court for some of its judgments, but no person can describe it as a passive judiciary. The recent judgments of the Court clearly portray it as an active, rather an overactive judiciary.

No one can claim unrestricted entry to any temple or religious institution or a public meeting. A person with proven criminal antecedents may be rightly denied entry. But, surely, it is irrational to deny entry to a certain class of citizens, for example, women, because of a natural physical phenomenon like menstruation. Menstruation is not a crime. This practice, prevalent at the Sabarimala temple in Kerala, ignited the jurisdiction of our Supreme Court which battled with this issue, and occasioned the dissenting judgment of Justice Indu Malhotra.

Lengthy and erudite arguments were advanced by parties who championed a woman’s right of entry based on the guarantees of equality and prohibition of discrimination inter alia on the ground of sex. Parties supporting the no-entry practice relied on Article 25 which guarantees the right to practise and profess religion. They overlooked that this Article is “subject to other provisions of the Constitution”. In other words, subject to Articles 14 and 15, which prohibit discrimination inter alia on grounds of gender.

Another argument was the right of the “Deity” Ayyappa, who is believed to be in disfavour of the entry of women of certain ages in a temple and whose divine right, it is argued, should be respected.

Ordinarily, the Supreme Court judgment should finally settle any controversial issue, but not in our country. This is evident from the heated debates on the issue on TV channels and in public meetings. Interestingly, many women support the no-entry rule, not on legal or constitutional grounds, but on the misconception that a menstruating woman is not “clean” and, therefore, allowing her to enter the temple would be a desecration of a holy place. To keep the pot boiling, the issue has been referred to a larger bench of seven judges. It is debatable whether the seven judge bench judgment will finally put a lid on the matter. The real remedy would be to cleanse the minds of the supporters of no-entry to women doctrine.

The Rafale case is another instance worth noting. The Supreme Court dismissed the review petitions filed against its previous order, which found nothing wrong with the Rafale transaction. This has not excited the public. What has is the Supreme Court’s dismissal of the contempt petition against Rahul Gandhi for him attributing his comment — “chowkidar chor hai” — to the Court itself. Rahul Gandhi tendered an unconditional apology, which was accepted, but with a strong warning to him to be careful in the future. I think Rahul Gandhi was dealt with leniently. He is an influential political leader who should not make statements which are untrue and betray disrespect for the Court.

Another Supreme Court judgment which has hit the headlines is its decision to uphold the Karnataka Speaker’s orders disqualifying 17 defectors. The Supreme Court, however, quashed the Speaker’s order to the extent that it prevented the disqualified candidates to contest elections till 2023. The Court’s exposition of the law relating to the inter-play between resignation and defection is welcome.

It ruled that the resignation does not take away the effect of a prior act that incurs disqualification. The Supreme Court made instructive observations about the role and function of the Speaker in dealing with cases of disqualification of a candidate on the grounds of defection. It ruled that Speakers are not given a free pass to sit on resignation letters indefinitely. Once it is demonstrated that a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation. The Speaker is not empowered to consider the motives and circumstances whenever a resignation letter is submitted. The Supreme Court deplored that Speakers sometimes tend not to be neutral.

Points of contention in surrogacy bill

Source: Hindustan Times dated 02.12.2019

-- Bhadra Sinha
The bill to ban commercial surrogacy has several loose ends and the 23-member Rajya Sabha select committee to which it has been referred for further scrutiny will discuss and try to rectify the shortcomings to avoid legal complications that are likely to arise if it is notified in its present form, experts say.

The government faced stiff opposition in the Upper House on November 20 when Union health minister Harsh Vardhan proposed the bill for passage on November 21. It prompted a motion by the minister to refer the bill to the select committee following a voice vote.

The Surrogacy (Regulation) Bill, 2019, seeks to allow altruistic surrogacy in cases where the surrogate mother is a close relative who has been married and has had a child of her own.

The proposed bill bans monetary exchanges except for paying for necessary medical expenses. Several Rajya Sabha members sought amendments in certain provisions, including the removal of the term “near relative”, with a clear mention of who, within a family, can be a surrogate. They also wanted the removal of the period of a minimum of five years before couples could opt for surrogacy, as many may not want to wait that long to start a family.

Advocate Radhika Thapar Bahl said the bill in its present form prohibits surrogacy. “Surrogacy law is intended to build families. Altruistic surrogacy confined to families will lead to a new form of domestic violence as families would force the women of the house to surrogate a child for a childless couple, ” Bahl said.

Viewpoints differ though.

“It can lead to trafficking of women and also give rise to unregulated commercial surrogacy. Women in families will not come forward to bear a child for someone else,” said Manasi Mishra, head of research at the Centre for Social Research. Not defining the two words “close relative” renders the law incomplete, she said.

The bill is also in conflict with the adoption law and Medical Termination of Pregnancy Act (MTP), experts claim.

“While the adoption law permits a single mother to adopt, the surrogacy bill prohibits it since only infertile couples are allowed to go for a surrogate child. What if a single woman does not want to get married but is keen to have a surrogate child. The bill is silent on this,” Bahal says.

Also, while the MTP law allows a pregnant woman to abort within 12 weeks, on the advice of one doctor, the surrogacy bill permits a surrogate mother to abort only after getting approval from a statutory board to be set up as per the regulations. Further, the bill is silent on who will have the discretion to abort the baby – the surrogate mother or the couple seeking a child.

According to Mishra the bill does not say in explicit terms that there should be a strong agreement between a surrogate mother and the couple seeking to adopt a child. “Even in altruistic surrogacy the terms of an agreement should be clear to avoid litigation in future,” she says.

“Also, what interim measure should be taken in case the child is abandoned,” Bahl says.

Members had raised concern on the provision which allows a close relative to act as a surrogate to couples who have been legally married for at least five years.

The bill fails to provide immediate relief in case a child is abandoned. It is silent on who shall have the discretion — the surrogate mother or the couple seeking a child — to abort the baby in case of complications during pregnancy. The bill requires couples opting for surrogacy to seek a certificate of proven infertility.

The panel comprising BJP’s Rajya Sabha MP Bhupendra Yadav and Congress MP Jairam Ramesh, has to submit its report by the last day of the last week of the next session.

What Fundamental Duties mean?

Article in the Indian Express dated December 02, 2019 reagrding the meaning of Fundamental Duties in Indian Constitution by Abantika Ghosh. Link to this article:

https://epaper.indianexpress.com/c/46417998

Can artificial intelligence help reform Indian courts?

Source: Hindustan Times dated 29.11.2019

-- Ameen Jauhar (Senior Resident Fellow working on judicial reforms at Vidhi Centre for Legal Policy)

AI can aid judicial reform. But do remain cautious about abuse of big data sets, and biases in technology.

Minority Report was a classic Steven Spielberg sci-fi film. Employing tech-noir, the film exhibited a dystopian plot showcasing the dire pitfalls and consequences of predictive law enforcement. The movie conceived a futuristic technology, mixing psychics and premonitions, to pre-empt crime, with a suspect apprehended using a special department labelled, quite literally, “PreCrime”. Similar themes surrounding the deployment of intelligent machines to aid in law enforcement and criminal justice, which in turn go awry, have consistently featured in popular culture. These seemingly grandiose notions of artificial intelligence (AI) are rapidly finding themselves at play in real life.

The new Chief Justice of India (CJI), SA Bobde, has, in no uncertain terms, expressed the judiciary’s desire not to miss the AI bus. He has talked about the Supreme Court (SC)’s internal group of experts, currently working to determine avenues for deploying AI in our courts. Though the technology is novel, the focus is on the age-old, intergenerational crisis of excessive judicial backlog. With AI, the judiciary wants to experiment and deploy a transformative technology, which supersedes all its earlier efforts of integrating information and communication technologies in courts, under the e-courts project.

AI can potentially create unique technological applications to exponentially improve the efficiency of judges and lawyers. These interventions will go beyond merely identifying case status updates or finding the appropriate orders and judgments. The automation conceived through AI is far more sophisticated, allowing, for instance, judges to determine precise answers to their queries in a bail application, using a case-query tool. Rapid progression in machine learning and natural language processing techniques have opened the floodgates for newer tools.

While all this sounds fascinating, and gives life to hitherto fictional plots, there are considerable challenges underlying the deployment of AI-driven technology in Indian courts. For the judiciary, there are two immediate concerns, which warrant more deliberation and concrete governance frameworks.

First, there is the question regarding the collection and utilisation of big data. Machine learning inherently operates with large data-sets serving as fuel for the engine, informing the algorithm of the various correlations, patterns, and analyses of extensive and meticulous data sets. While the SC recognised the individual’s right to privacy in its landmark Puttaswamy judgment, the contours of this are amorphous. The vacuum of a statutory framework for data collection and protection renders the use of copious data sets susceptible to abuse.

The second issue, needing a finer and more pragmatic appraisal, is the presumed unbiased nature of an AI-driven tool. Among many exponents, there is a seeming consensus that AI in courtrooms can dispel the biases of judges. The problem with this reductionist conclusion is factual inaccuracy. For all its technological superiority, AI today is indeed afflicted by biases. An official report from the Obama presidency’s archives identified different types of biases, from the use of inaccurate, incomplete, or antiquated data sets, to the personal bias of programmers designing AI-driven tools, seeping into the final product. AI is, thus, vulnerable to existing biases, and given the extent of its usage, it has the capacity to perpetuate these systemically, if it is deployed in an unregulated manner.

The question then remains whether AI should be avoided in the courts or are there steps that can ensure the maximisation ofits potential, while minimising the detrimental fallouts. The answer must always be the latter.

To optimise the utility of AI in the Indian judiciary, there are four broad steps that must be taken. One, undoubtedly, the first-generation AI tools, as have been highlighted by the CJI in his media interviews, will prove to be a watershed. However, it is imperative that the process is iterative and incremental, yielding more sophisticated and diversified AI-driven technology for the Indian judiciary.

Two, to undertake this steady expansion, it is critical to facilitate the requisite user feedback through appropriate channels. These feedback loops must be supplemented with periodic, impact evaluation studies.

Three, as the AI industry is rapidly evolving, so must policies and governance frameworks for this technology to remain effective. Given its innate complexity, the use of AI must certainly be experimented only through an evidence-based and research-driven approach, and not through experiential intuition.

Four, a long-term transition into an AI-driven justice system requires all stakeholders to have a firm grasp over its technologies. Therefore, streamlining of training modules and workshops for evolving more sophisticated AI, must be effectuated simultaneous to its deployment in the courts. AI still remains uncharted territory. These steps will ensure its seamless integration and allow future generations to build on this edifice in the coming years.

A code for resolution: 3 years on Insolvency and Bankruptcy Code is learning from outcomes, growing stronger

Article in the Indian Express dated November 29, 2019 which is a commentary on the Insolvency and Bankruptcy Code by Soumya Kanti Ghosh (Group Chief Economic Advisor, SBI). Link to this article:

https://epaper.indianexpress.com/c/46300892

Coming: a Rulebook, Bill of Rights and 'Contract' for the World Wide Web

Article in the Indian Express dated November 27, 2019 regarding the coming changes in the functioning of the Internet in the form of a Contract by Shruti Dhapola. Link to this article:

https://epaper.indianexpress.com/c/46220745